Raymond Ellison v. The State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-99-126-CR

RAYMOND ELLISON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # 27888

O P I N I O N

Raymond Ellison pleaded guilty to aggravated assault in December 1990 and was sentenced to eight years imprisonment. The court suspended imposition of sentence and placed him on probation for ten years. The court revoked Ellison s probation in April 1999 for failure to pay probation fees and sentenced him to eight years imprisonment. Ellison claims in two points that the court violated his due process rights by: (1) not considering the entire range of punishment after the court revoked his probation; and (2) predetermining sentence once the trial court had decided to revoke his probation. Because both claims turn on the same rationale we will address them together.

The Code of Criminal Procedure provides that when the defendant is found to have violated a condition of community supervision, the court may continue, extend, modify, or revoke the community supervision. Tex. Code Crim. Pro. Ann. art. 42.12 21(b) (Vernon Supp. 2000). The Code also permits the court, after it has revoked probation, to proceed to dispose of the case as if there had been no community supervision. Id. at 23(a) (Vernon Supp. 2000). However, any error in this process must be preserved for appeal. The defendant waives any due process complaint when he does not object to the punishment assessed or to any procedural error which counsel could have called but did not call to the trial court s attention. See Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1981); Cole v. State 931 S.W.2d 578, 580 (Tex. App. Dallas 1995, pet. ref d.).

The record in this case shows that Ellison did not voice any due process objection during the revocation hearing or in his motion for new trial. Ellison objected only to the admissibility of the State s testimony. However, he later withdrew this objection. The court gave Ellison an opportunity to call witnesses in his favor, but he did not. Because Ellison did not object to the manner in which the court determined his sentence, he has waived any error. Accordingly, we overrule his first and second points.

The judgment of the trial court is affirmed.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed October 18, 2000

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